Court Upholds $15 Million Punitive Damages Award for Post-Liposuction Death

On November 17, 2010 the PA Superior Court upheld a $20 million dollar award, including $15 million in punitive damages, given by a Philadelphia jury that found a plastic surgeon and a nurse anesthetist liable for an 18 year old college student’s death after an elective liposuction procedure.  The lawsuit had been brought by Plaintiff’s on behalf of their deceased daughter, against Dr. XXXXX, XXXXX & Associates, XXXXX and XXXXX Associates, Inc.

Dr. XXXXX and XXXXX & Associates were found to be 75% responsible for the patient’s death and XXXXX and XXXXX Associates, Inc., were found to be 25% responsible.  Plaintiff had sought elective liposuction for her chin, abdomen and flanks on May 23, 2001 according to the Complaint.

According to the Plaintiff’s trial contentions, Dr. XXXXX ruptured a blood vessel, the patient’s oxygen saturation dropped, her blood circulation became unstable, her heart rate rose and he neck bulged with blood, swelling to twice its normal size.  Allegedly, the nurse anesthetist made Dr. XXXXX stop the liposuction and reversed the anesthesia, but the patient did not awaken.  Allegedly, Dr. XXXXX then refused to let the patient’s mother see her in the operating room and refused to send the patient to a hospital emergency room for close to three (3) hours.  Allegedly, when an ambulance crew finally was called and arrived at Dr. XXXXX’s office, the patient was in critical condition and in severe respiratory distress.  The patient died two days later after she was transferred from Montgomery Hospital to the Hospital of the University of Pennsylvania.

The Plaintiffs’ attorney has stated that most of the award will not be recoverable from insurance, and Plaintiffs’ attorney is attempting to prevent Dr. XXXXX from discharging the Damages Award in the U.S. Bankruptcy Court.  According to court papers, the Plaintiffs’ have argued that Dr. XXXXX’s debt “was obtained by false pretenses, false representation, or actual fraud, and so is non-dischargeable.” That issue remains to be determined by the Bankruptcy Court.

This case is unusual and very noteworthy in light of the huge punitive damages award.  The actual compensatory damages for the patient’s death were slightly more than $3.5 million dollars.  However, the punitive damages award was $15 Million.

In upholding the punitive damages award in the case, the Superior Court wrote,

“The evidence in this case, taken in the light most favorable to the Flettermans as the verdict winner, illustrates an appreciation of the risks and a conscious disregard for those risks on the part of Dr. XXXXX that would support a claim for punitive damages”.

The opinion goes on to say that, “Dr. XXXXX ignored both warning signs of a medical emergency and a mother’s desperate pleas for transfer to a hospital”.  The court further wrote in its Opinion:

“Despite respiratory distress, and the pleas of Mrs. XXXXX to transport her daughter to a hospital, Dr. XXXXX maintained that hospitalization was unnecessary.  Critical hours passed when Amy needed care only available at a hospital.  Dr. XXXXX failed to act.  He did not have the protocols in place to swiftly arrange for emergency transport.  Experts testified that the two and-one-half hour delay in calling an ambulance increased the risk of Amy’s death.”

Please also note that the anesthetist, XXXXX, testified at trial that he would not have provided anesthesia during the patient’s liposuction if he had known XXXXX (Dr. XXXXX), “had no written emergency plan, no agreement with an ambulance company, and no admitting privileges at the nearest hospital.” The anesthetist was found liable for his own negligence under his own professional standards which, according to the court’s opinion, required him “to ascertain whether the facility was licensed and accredited and had a written transfer and emergency services agreement in place before administering anesthesia in the facility”. However, the anesthetist was not found liable for any of the punitive damages.

It is important to recognize that the huge punitive damage award was not deemed by the Superior Court to have been appropriate based upon the fact that the physician had been found liable for negligently causing the patient’s death. Instead, it was the jury’s finding that the physician refused to promptly transport the stricken patient to a hospital despite her mother’s “desperate pleas” for such transfer that justified the punitive damages.

The lesson to be learned from this horrific case is that a physician must never ignore (or even minimize) a patient’s severe distress (especially in the face of an abnormal outcome). While a physician may have the best of motives and a rational reason for delaying the involvement of other medical practitioners in his patient’s care, it exposes him to a jury second-guessing his conduct. As happened to Dr. XXXXX, it can lead to a financially disastrous punitive damages award.

Commentary by Marshall L. Grabois, Esquire, 166 East Butler Avenue, Ambler, PA 19002; 215-643-7866; mlg@pennagrabois.com

Disclaimer: This commentary should not be considered professional legal advice or counsel, but only as an informal discussion on a topic of general interest.

Marshall Grabois, Esquire

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